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2004 DIGILAW 645 (PAT)

Amrendra Kumar Jha v. State Of Bihar

2004-07-06

NARAYAN ROY

body2004
Judgment 1. Heard counsel for the parties. 2. This application has been filed for issuance of direction upon the respondents to confirm the appointment of the petitioner on the post of Junior Accounts Clerk. A further prayer has also been made for payment of arrears/difference of salary of the petitioner with effect from 1997 till date. 3. It is submitted by learned counsel for the petitioner that initially the petitioner was appointed on Class IV post by virtue of the order, as contained in annexure 1 dated 25.2.1992, issued by the Secretary, Water Resources Department, Government of Bihar, Patna. 4. The petitioner was placed under respondent no.3, Chief Engineer (Mechanical), Water Resources Department, Government of Bihar, Patna and by virtue of the order, as contained in annexure 2, the Chief Engineer, respondent no. 2, asked for names of the persons working on Class IV posts for appointment on Class III post owing to the vacancy for Class III posts. The name of the petitioner alongwith others was recommended by the Superintending Engineer to the Chief Engineer and by virtue of the order, as contained in annexure 3, the petitioner and two others were appointed on Class III sanctioned vacant posts of Junior Accounts Clerk vide memo no. 265 dated 26.4.1995. The petitioner thereafter reported his joining before the Executive Engineer (Machanical), Bhagalpur. However, the joining of the petitioner was not accepted, therefore, he again reported to the Chief Engineer and by virtue of order, as contained in annexure 5, the petitioner reported his joining before the Executive Engineer, Darbhanga and the same was accepted and the petitioner till date is working at Darbhanga and his salary was paid up to September 1997 and on objection raised by the audit that his appointment on Class III post has not been confirmed by the competent authority, his salary has been withheld till date. 5. A counter affidavit has been filed on behalf of the respondent State precisely stating therein that Class III posts are State cadre posts, and, in that view of the matter, the Chief Engineer was not the competent authority to appoint the petitioner on Class III post. It is further stated that the petitioner was confirmed on Class IV post in the year 1999 and till date he is getting the scale of Class IV employee. 6. It is further stated that the petitioner was confirmed on Class IV post in the year 1999 and till date he is getting the scale of Class IV employee. 6. Learned counsel for the petitioner now submits that the Chief Engineer (Mechanical) was the competent authority to appoint the petitioner and this fact finds support from the order, as contained in annexure 17 to the rejoinder to the counter affidavit filed on behalf of the petitioner to the extent that two other persons, who were appointed alongwith the petitioner on Class III posts and their appointment was also cancelled, have again been appointed on Class III posts by the Chief Engineer (Mechanical) pursuant to the orders passed by this Court in Review Application No. 331 of 1997. 7. From annexure 17 to the rejoinder, as referred to above, it appears that Ashok Kumar Jha and Saroj Kumar Singh, who were appointed alongwith the petitioner by virtue of the order, as contained in annexure 3, and whose appointment subsequently was cancelled, have again been appointed by the same authority on Class III post. 8. Now the fact remains that the Chief Engineer at the relevant time was the competent authority to appoint the petitioner and others on Class III posts. 9. It appears that Ashok Kumar Jha and Saroj Kumar Singh aforesaid, whose appointment on Class III posts earlier was cancelled, had approached this Court in writ applications, which were dismissed and the orders passed in the writ applications were affirmed. However, in Review Application No. 331 of 1997 certain directions were issued by this Court to consider the cases of the writ petitioners and thereafter the order, as contained in annexure 17, was issued appointing those persons on Class III posts. 10. From the reasons aforementioned, therefore, it is held that the petitioner was appointed by the competent authority. 11. It appears that merely because the appointment of the petitioner on Class III post was not confirmed, he is not getting his salary for Class III post. 12. The petitioner, undisputedly, is working on Class III post as Junior Accounts Clerk since 1995 and similarly situated persons, who were terminated, have again been reinstated on the posts of Junior Accounts Clerk, and are getting their salary, and, therefore, by efflux of time, equity demands that that the petitioner will be deemed to have been confirmed on Class III posts itself. 13. Considering the facts and circumstances of the case, the petitioner is entitled for salary for Class III post with effect from October 1997 and the respondent authorities are, accordingly, directed to pay the difference of salary to the petitioner with effect from October 1997 for Class III post till date. This exercise, however, must be completed by the respondent authorities within a period of three months from the date of receipt/production of a copy of this order. 14. With the direction/observation aforesaid, this application is disposed of. 15. No order as to costs.